NACQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 355

FEDERAL COURT OF AUSTRALIA

NACQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 355 APPLICANT NACQ OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 367 OF 2002 DRUMMOND, NORTH & DOWSETT JJ 15 NOVEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 367 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN: APPLICANT NACQ OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: DRUMMOND, NORTH & DOWSETT JJ

DATE OF ORDER: 15 NOVEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of and incidental to the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 367 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN: APPLICANT NACQ OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: DRUMMOND, NORTH & DOWSETT JJ

DATE: 15 NOVEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

The Court: 1 This is an appeal from a decision of Beaumont J (the primary judge) made on 11 April 2002. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 11 October 2001. By that decision, the Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister), not to grant the appellant a Protection (Class XA) Visa.

background 2 The appellant is a citizen of Palestine who was born on 9 January 1977. Until arriving in Australia, he lived in the West Bank city of Janin. From 1997 to 2000, the appellant worked as a wholesaler of fruit and vegetables in Janin. 3 Before the delegate and the Tribunal, the appellant claimed that he feared persecution from Israeli spies if he was forced to return to Palestine. The circumstances leading up to his departure from Palestine were set out in a written statement attached to his application for a protection visa. In summary, the circumstances were as follows. 4 In April 2000, the appellant was involved in a violent incident with Mr Sati Al-Sharqawi, who beat the appellant after the appellant refused to become an informer for the Israeli intelligence. The appellant's statement then recorded the following: "I went back home and some marks of a fight were still apparent on my body. My family insisted on knowing what happened. When I told them, my father said words to the effect that: 'Sati did this because your brother Ahmed was involved in arresting Sati's group of Israeli agents and he interrogated them. They were: Salim Abu Fahd, Mehdi Al-Darbi and Tayseer Jaradat, who was known as the joker. They confessed that it was Sati who heads the group. Sati became wanted by Palestinians. He fled from Genin to live in Israel and his house was burnt by angry Palestinians.' I then realised that the real reason behind my problem was that I and all members of my family had always supported the PLO and later the Palestinian Authority. My brother was one of the leaders of a group of National Committee which was established during the first uprising (INTIFADA) of the Palestinians against Israel. I was also an out spoken [sic] person on the rights of our people to have their own independent state and that there is no room among the Palestinian people for traitors. Those persons should be arrested, taken to court and punished." [emphasis added] 5 In June 2000, the appellant again met with Mr Al-Sharqawi. However, this time, the appellant beat Mr Al-Sharqawi. 6 In July 2000, the appellant's car was burned outside his house. Graffiti was inscribed on the car "Today is your car and tomorrow is you". The incident was reported to the Palestinian police. The Palestinian police told the appellant that, because Mr Sharqawi did not live in Janin, he was under the Israeli security and could not be arrested by them. They told the appellant that the Palestinian Authority wanted Mr Sharqawi and that he should advise the police if he saw Mr Sharqawi in Janin. 7 Later in July 2000, the appellant's house was fired upon by several shots. The Palestinian police were called, who concluded that the bullets found were those used by the Israeli army. 8 In August 2000, the appellant applied for a visa to visit Australia. He claimed that this was "in anticipation for future problems and as a precautionary measure". 9 In September 2000, the appellant was fired upon from a car as it passed him. Shortly afterwards, the appellant left Janin. 10 The appellant arrived in Australia on 23 October 2000 on a tourist visa, which was valid until 11 March 2001. 11 On 27 November 2000, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (the Department), as it was then. His application was refused on 12 March 2001. On 22 March 2001, the appellant applied for a review of the delegate's decision by the Tribunal. 12 A written submission to the Tribunal dated 27 July 2001 made by the appellant's then migration agent, contended: "It is respectfully submitted that … [the appellant's] fear can be characterised as arising for the Convention reasons of 'political opinion' and 'membership of a particular social group'. In relation to the former, … [the appellant] claimed (in his statement which accompanied his primary application) that his brother (…) was involved in the PLO through his membership of the Social Party, a Palestinian political organisation. This family link to politics lends itself to a political opinion being imputed to … [the appellant] by the group he fears will harm him. However, it is also submitted that … [the appellant's] support for the PLO amplifies this family link. For example, in his statement … [the appellant] claimed: '… the real reason behind my problem was that I and all members of my family had always supported the PLO and later the Palestinian Authority. My brother was one of the leaders of a group of National Committee which was established during the first uprising (INTIFADA) of the Palestinians against Israel. I was also an outspoken person on the rights of our people to have their own independent state and that there is no room among the Palestinian people for traitors. Those persons should be arrested, taken to court and punished.' This statement, although brief, discloses a clear political view held by … [the appellant]. It also discloses … [the appellant's] membership of a particular social group, one constituted by his membership of a family closely aligned to the PLO, through the activities in particular of … [the appellant's] brother, …. It is also submitted that … [the appellant] was intentionally and deliberately targeted for recruitment (initially) and then retribution (subsequently) by Mr Sati [Sharqawi] because of the family's tie to the PLO." [emphasis added] 13 The appellant did not appear at a hearing offered by the Tribunal. Before Beaumont J, the appellant's counsel explained the appellant's failure to appear before the Tribunal was the result of a misunderstanding between the appellant and his solicitor. However, this fact was not relied upon as a ground of review at first instance. 14 On 11 October 2001, the Tribunal determined to affirm the decision of the delegate to refuse to grant a protection visa to the appellant.